Supreme Court Weighs Major Video Privacy Case

It’s usually legal for an American company to gather your personal data and use it to target you with an advertisement, and many online companies rely on this to make money. But a data privacy case now before the US Supreme Court may upend the longstanding practice of personal data collection for use in targeted ads.

The case, Salazar v. Paramount Global, stems from a 2022 class action lawsuit filed by Michael Salazar. At issue is a free digital newsletter Salazar signed up for, which was published by 247Sports.com, a college sports news website owned by Paramount Global. 

The website included a tracker that shared Salazar’s video viewing history with Facebook without his consent. Salazar says that Paramount did this illegally. But the federal law that Salazar says Paramount violated is a 1988 Reagan-era act governing videotape rentals. 

Home video leak

In 1987, President Ronald Reagan nominated Robert Bork for a seat on the Supreme Court, though the nomination was famously rejected by the Senate. During Bork’s confirmation hearings, a writer for the alt-weekly Washington City Paper convinced the manager at a video rental store to slip him Bork’s video-rental history, which the paper published along with commentary on Bork’s film choices. 

While Bork’s rental history was fairly boring, the story and its fallout eventually led Congress to pass the Video Privacy Protection Act. The law was created for analog media, but Salazar’s team argues that it also applies to digital media, such as website content. Essentially, if it’s illegal for a video rental store to share your customer information, why are tech companies allowed to do it?

“The Supreme Court’s decision in Salazar v. Paramount Global will affect the privacy rights of millions of people across the country,” Salazar’s lawyer, Joshua I. Hammack, told CNET via email. “Ordinary consumers might be shocked to learn how much of their online activity is tracked, disclosed, and sold. As I argued to the Supreme Court, the Video Protection Privacy Act was designed to give Americans control over our private information, even as companies like Paramount seek new ways to monetize it.”

Defining a consumer

Paramount’s argument centers on how a “consumer” is defined in the Video Privacy Protection Act, with the company asserting that the definition doesn’t include people who subscribed to a free digital newsletter. This was the reason the 6th Circuit Court of Appeals rejected the lawsuit. 

“The Sixth Circuit correctly rejected that effort,” a case document filed by Paramount reads. “The court of appeals dismissed Salazar’s complaint against 247Sports on the grounds that Salazar is not a ‘consumer’ because he did not ‘rent, purchase, or subscribe’ to the delivery of any ‘video cassette tapes or similar audio visual materials.’”

The National Retail Federation, Retail Litigation Center, Motion Picture Association, Entertainment Software Association, Meta and the US Chamber of Commerce have all written the court in support of Paramount’s position. 

A representative for Paramount Global didn’t immediately respond to a request for comment.

Why do I care who has my data?

Neil Richards, Koch Distinguished Professor and director of the Cordell Institute at the University of Washington School of Law, believes the Video Protection Privacy Act applies to this case and should be enforced. 

“Regulating surveillance-based ads, whether by banning them, by giving people meaningful choice to opt out entirely, or through interpretations of existing laws like the VPPA, would be the single best thing we could do for the privacy protections of the average internet user,” Richards told CNET via email.

Although the act was enacted back when Blockbuster Video stores blanketed the country, Richards said the law was intended for future use.

“Congress intentionally drafted the law in a far-sighted way to protect the activity of private video-watching, regardless of the technologies or formats used to watch,” Richards said. “A win for Salazar would be a much-needed win for internet privacy and a much-needed pushback to the greed of surveillance tech companies.”

What could change with data tracking

Even if Salazar wins, any restrictions on tracking could be limited, as the case is specifically about whether it’s illegal to share someone’s digital video-watching history. 

“I think that video content probably isn’t actually influencing that many ads.” Justin Brookman, the director of technology policy for Consumer Reports, told CNET over the phone. “Most targeted ads are like retargeted ads based on, ‘you looked at this product, and therefore the product’s going to follow you around.’”

Applying the act here probably won’t sink online targeted ads, Brookman says, even if the law is interpreted fairly broadly. But Brookman says he hopes the case culminates in new privacy protections for internet users, as long as those new protections don’t place the burden on internet users. 

“I think just a prohibition on sharing [personal data] would be a better result than forcing people through a million consent screens in every site they go to,” Brookman said. 

A chilling effect

Tracking and sharing the histories of the videos people watch could negatively affect internet users’ behavior, according to Eric Null, director of the privacy and data project at the Center for Democracy and Technology.

“Watching videos is an expressive activity, and having those videos tracked, shared, and sold to third parties for various and potentially nefarious purposes will chill that expression,” Null said in an email to CNET. 

“The VPPA does cover free online pre-recorded videos, but the statute nonetheless has significant limitations in its scope that can only be rectified by updating our privacy laws,” he said. “We could, of course, do so through a comprehensive privacy law that includes protections for video viewing.”

A Supreme Court ruling is expected in 2027.